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PATNA HIGH COURT
Mridula Mishra, J.
Bulkan Prasad Singh
Versus
State Of Bihar
CWJC No. 8803 of 2005
Decided On : FEBRUARY 22, 2011
Departmental Proceeding - Violation of Rule 43B of the Bihar Pension Rules - [Rule 43B of the Bihar Pension Rules] - The court discussed the violation of Rule 43B of the Bihar Pension Rules, which mandates the conversion of an unconcluded departmental proceeding into a proceeding under pension rules for prosecuting retired government employees. The court found that the failure to convert the proceeding into a pension rule proceeding rendered the entire departmental proceeding illegal and the punishment awarded against the petitioner as illegal, leading to the quashing of the orders.
Fact of the Case:
The petitioner filed an application for quashing of an order containing punishments awarded in a departmental proceeding and sought relief for payment of gratuity, salary, and pensionary benefits. The petitioner was suspended and faced charges, and the departmental proceeding was concluded without providing the petitioner with an opportunity to defend himself.
Finding of the Court:
The court found that the departmental proceeding was conducted in violation of the rule of natural justice and Rule 43B of the Bihar Pension Rules, rendering the entire proceeding and the punishment awarded illegal.
Issues: Violation of Rule 43B of the Bihar Pension Rules, failure to provide an opportunity to defend in the departmental proceeding, and the dismissal of the appeal by the Appellate Authority without considering the grounds taken by the petitioner.
Ratio Decidendi: The court held that the failure to convert the unconcluded departmental proceeding into a proceeding under Rule 43B of the Bihar Pension Rules rendered the entire proceeding illegal and the punishment awarded against the petitioner as illegal. The court also found that the departmental proceeding was conducted in violation of the rule of natural justice.
Final Decision: The court quashed the orders contained in Memo no. 106 dated 10.2.2005 and order dated 22.9.2005 contained in Memo no. 2326 dated 28.9.2005.
1. Heard counsel for the petitioner and the State.
2. A detailed counter affidavit has been filed by the State-Respondents.
3. Petitioner has filed this application for quashing of order contained in Memo no. 106 dated 10.2.2005, whereby punishments have been awarded to the petitioner by the Disciplinary Authority in the departmental proceeding. Further relief prayed by the petitioner is for a direction to the respondents to make payment of gratuity with interest. Payment of salary for the period of suspension minus subsistence allowance and to conclude the period of suspension as period of duty for granting increment and pensionary benefits as well as for payment of 100% pension and other pensionary benefits with interest.
4. Following punishments were imposed against the petitioner:
(i) Besides the subsistence allowance nothing will be paid to the petitioner for the period of suspension.
(ii) Period of suspension will be treated as absence from duty and it will not be calculated for allowing increments and pension.
(iii) 90 per cent pension paid to the petitioner wili be rejected.
(iv) Payment of 100 per cent gratuity will be rejected.
(v) Embezzled amount will be recovered from the petitioner, subject to order passed in the criminal case.
5. I.A. No. 4543 of 2010 has been filed by the petitioner for amending the relief prayed in the main writ application and the additional relief prayed by the petitioner is for quashing of the order dated 22.9.2005 issued under the signature of Industrial Development Commissioner contained in memo no. 2326 dated 28.9.2005, whereby appeal preferred by the petitioner against the order passed in the departmental proceeding has been rejected and the order of punishment awarded in the departmental proceeding has been affirmed.
6. Petitioner was posted as an Accountant in the Industries Department, while he was put under suspension on 7.9.1996 in contemplation of the departmental proceeding. Charges were framed and furnished to the petitioner on 23.7.1997 and the petitioner was asked to submit his show cause. Receiving the charge-sheet petitioner filed a representation with a prayer to keep the departmental proceeding in abeyance, till conclusion of the criminal case instituted in relation to same charges for which the departmental proceeding had been initiated. Vigilance Case No. 10 of 1997 had been instituted for similar allegation, in which petitioner was also one of the accused.
7. Petitioners case is that allegation in the criminal case as well as charges framed in the departmental proceedings being identical, it would have been proper not to proceed with the departmental proceeding tiil disposal of criminal case. Petitioner, otherwise would be compelled to disclose all his defence, during the pendency of the criminal case.
8. Counsel for the petitioner submits that petitioner was waiting for the order on his representation by the disciplinary authority but there was no response, and no order was ever communicated to him. In the meantime on 31.10.1997 he superannuated from service. Petitioner did not receive any communication from the respondents that unconciuded departmental proceeding has been converted into a proceeding under Rule 43B of the Bihar Pension Rules. In order to proceed with an unconciuded departmental enquiry against a retired Government employee, it was mandatory to convert it into a proceeding under Section 43(B) of the Pension Rules, in case the Government wanted to prosecute the retired employee for charges framed against him.
9. Counsel for the petitioner submits this is well settled law that after retirement of a Govt, employee, there do not exist any relationship of employer and employee in between the employee and State. In order to combat such situation, a departmental proceeding can continue in term of provision under Rule 43B of the Bihar Pension Rules. The departmental proceeding can be converted into a proceeding under pension rules, for prosecuting the
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